Omaha Hardware Co. v. Duncan

• Decision Date: 20 January 1891
• Citation: 31 Neb. 217,47 N.W. 846
• Parties: OMAHA HARDWARE CO. v. DUNCAN ET AL.
• Court: Nebraska Supreme Court

31 Neb. 217

47 N.W. 846

OMAHA HARDWARE CO.

v.DUNCAN ET AL.

Supreme Court of Nebraska.

Jan. 20, 1891.

Syllabus by the Court.

The defendants were engaged in the mercantile business, and were indebted to the plaintiff in the sum of $708.76. Soon after this debt became due, they executed a chattel mortgage on their entire stock of goods, fixtures, safe, etc., to the father of one of the defendants and an uncle of the other, then residing in Iowa, to secure the sum of $2,217.82. This mortgage was made in the absence of the mortgagees, apparently without their knowledge or acceptance, and was filed for record on the day it was made. An attachment was thereupon levied upon the goods of the defendants, who, to sustain the mortgage, filed an affidavit stating “that said mortgage was given to secure a valid indebtedness from these defendants to said W. H. Butler and Edmund Jeffries of $2,217.82.” Held that, to sustain the mortgage, the facts should have been alleged, showing how and for what the indebtedness was incurred, and that in the absence of such showing the proof was not sufficient to establish the fact that the mortgage was bona fide.

Error to district court, Adams county; GASLIN, Judge.Kennedy, Learned & Barnard and Bailey & Cunningham, for plaintiff in error.

Tibbets, Morey & Ferris, for defendants in error.

MAXWELL, J.

The plaintiff brought an action against the defendants by attachment, in the county court of Adams county, to recover the sum of $708.75 for goods, wares, and merchandise sold and delivered by the plaintiff to the defendants. The attachment was sought on the ground that the defendants “are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors, and have assigned, removed, and disposed of, or are about to dispose of, their property, or a part thereof, with the intent to defraud their creditors, and are about to remove their property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud their creditors.” The defendants filed a motion to dissolve the attachment, and in support thereof filed their joint affidavit denying the grounds stated in the petition, etc. The plaintiffs, to sustain their attachment, filed certain affidavits; and on the hearing the attachment was dissolved and the property released. The case was taken on error to the district court, where the judgment of the county court was affirmed. It appears from the record that on the 2d day of October, 1889, the defendants were engaged in the mercantile business at Pauline, in Adams county. That on that day they executed a chattel mortgage to W. H. Butler and Edmund Jeffries upon “our entire stock of merchandise, including and consisting of dry goods, groceries, queens-ware, and hardware; also all fixtures, consisting of three show-cases, one chandelier, one stove, shelving, four counters, 3 pair scales, one Masher & Bowen safe. All of said goods, fixtures, etc., are now owned by us, and being in a frame store-room on lot 15, block 3, in Pauline, Adams Co., Neb. The mortgagors to remain in possession of said goods, etc., and to sell the same at retail or wholesale, and apply the proceeds to the satisfaction of the debt secured by this mortgage.” The mortgage was filed for record on the same day. It purports to be security for the sum of $2,217.82, as evidenced by six promissory notes. The mortgagees, nor any of them, were present when the mortgage was executed; nor does the proof before us show any acceptance thereof on their part, or that it was filed with their knowledge or consent. In support of the attachment, the affidavit of one M. L. Learned was filed, in which he says “that about 12:30 A. M., Friday, October 4, 1889, he had a conversation with W. J. Jeffries, a member of Duncan & Jeffries, above-named defendants, at the store of said Duncan & Jeffries in Pauline, Neb. That this affiant asked said Jeffries if said Duncan & Jeffries had not given a mortgage on their entire stock of merchandise and fixtures situate in their store-room in Pauline; and said Jeffries, in reply, said that the firm of Duncan & Jeffries had on October 2d given to W. H. Butler and Edmund Jeffries a mortgage for $2,217.82; and the said Jeffries further stated in said conversation that Edmund Jeffries, one of the mortgagees, was his father, and that W. H. Butler, the other mortgagee, was his partner's (Dunca...